INDUS TOWERS LTD NO. 12 TOWER-D, 7TH FLOOR, SUBRAMANYA ARCADE, BANNERGHATTA ROAD BANGALORE-560029 (REPRESENTED BY SRI K M ASHWIN KUMAR DGM-FINANCE) AND OTHER ETC. Vs. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES ENFORCEMENT I. SOUTH ZONE, KORAMAN

JUDGEMENT

(1.) All these writ appeals are preferred against the common order passed by the learned single Judge. None of the parties are happy with the order. Therefore, everyone has preferred appeal against the said order to the extent they are aggrieved of such order. Therefore, these appeals are taken up for consideration together and disposed of by this common order. For the purpose of convenience, the parties are referred to as they are arrayed to in writ appeal No. 3403-3439/2011 arising out of W.P. No. 11508/2011 and 12693-12727 of 2011.

(2.) The main object of sharing the infrastructure is for ensuring economy by avoiding multiple Telecom sites for different Mobile Service Providers in the same area. This concept was mooted and promoted by the Ministry of Telecommunications, Government of India, under the project nick-named as 'MOST', with an objective of reducing the number of towers and thus, optimizing the capital and operational expenditure of the Mobile Service Providers. Under this project, the concept of possibility of multi-technology (GSM and CDMA) and multi-operators (up to six operators) sharing a single tower with a view to bring down cost and enhance spread of affordable services continued to be carried out successfully by the industry.

(3.) The assessee has been registered with DoT for providing such shared Passive Infrastructure Services to various telecommunication operators in India. For the said purpose, the assessee owns or acquires and possesses or will acquire or possess certain telecommunication sites, infrastructure and equipments in various licensed Circles in India. For providing the said services, the assessee has entered into identical Master Services Agreements with telecom operators such as Airtel, Tata Tele Services Limited, Vodafone, Reliance, BSNL, Loop, Uninor, Idea Cellular Limited etc. Under the agreements, the telecom service providers are charged by the assessee for the "Site Access Availability" i.e., for the access granted to them to the passive infrastructure, owned and possessed by the assessee and for the related operation and maintenance services offered by the assessee for the effective and efficient use of the passive infrastructure. These charges are in the nature of service charges and are not in the nature of consideration received for transfer of property or for transfer of right to use any goods. The passive infrastructure is not just tower as erroneously understood in the notice, but, also other equipments such as DG sets, air conditioners, power management systems, batteries and other electrical works. The assessee provides required services along with the sharing of passive infrastructure i.e., tower sites and shelter rooms for installation and safe keeping of equipments (like antenna, microwave radios and Base Transreceiver Station (BTS)) belonging to telecom operators, while other equipments at the site like air conditioner, power grid connection, D.G. sets, power management systems, batteries, electrical wiring etc., are used to ensure 24 x 7 power supply and to convert 240 Volts AC current into -48 DC current required for smooth running of BTS and other equipments. The air conditioners are used to keep the temperature below 35 degrees Celsius inside the shelter room for smooth running of BTS. The assessee is also responsible for safety of the operators" equipments at its site. For all these services (site access, power supply, power conversion, air conditioning and safe keeping), the assessee receives a consolidated service revenue from its customers.